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Tuesday, April 29, 2014

In the United States, we have a pretty robust set of rules and practices we have to follow before we can execute someone. (In theory, anyway.) As we are basically the only major free nation with a democratically-elected government left who executes people as often as we do, it stands to reason that we'd at least have a better process than pretty much any other death penalty nation.

One of our (alleged) cornerstone principles is that each defendant is entitled to individualized consideration at sentencing. Furthermore, the key word in all death penalty cases is reliability. In theory, at least, we put a lot of stock in the notion that every piece that goes into reaching that ultimate sentence has to be reliable. It's cumbersome, expensive, time-consuming, and still yields mistaken verdicts.

But at least it's a whole lot better than this. In a trial that lasted minutes (yes, you read that right: minutes), an Egyptian court sentenced 683 people to death. This is the second such mass death verdict in recent weeks in Egypt, both by the same court. In a sign of its total reasonableness, the court in the first case later commuted many of those death sentences, so just under 500 defendants are now facing only life in prison while 37 had their death sentences upheld. So perhaps in another week or two, the court will also commute 600 or so of these death sentences to life in prison, thus leaving a much more reasonable 80 or so death sentences. Because that would make it ok.

Note also that all of the defendants are part of the Muslim Brotherhood or its supporters and that the political motivation appears to be to suppress this segment of the electorate before a May 26-27 election.

So, yes, the US does the death penalty a whole hell of a lot better than Egypt. Go us! We're better than a chaotic country currently ruled by the military, after a coup of an elected president, who is now trying to crack down on a particular portion of the electorate in advance of the next presidential election!

(But we still do it pretty poorly and should stop doing it all together.)

Wednesday, April 23, 2014

I'm always weirded out when I find myself agreeing with Justice Scalia. (Same with George Will, who once in a while doesn't piss me off.) There are just some people whose world views are so diametrically opposed to my own, it doesn't seem possible there could be any overlap. Scalia thinks actual innocence isn't a basis for not executing someone. (Really, he more rejects the idea that innocent people are ever convicted in the first place.) Scalia hints that he thinks the idea of suppressing evidence from unconstitutional searches and seizures has no basis in the 4th Amendment.

In a nutshell, here's what happened. 911 call was made by someone (a woman, apparently) telling the operator that she was run off the road by another driver. The caller described the truck, including the license plate, and the location. Within about 20 minutes, a state trooper was behind the truck, about the right distance away from where the incident allegedly originally happened. Through the trooper followed the pick-up truck for 5 minutes or so without witnessing any traffic infractions (a feat in and of itself, really), the trooper pulled over the truck. The trooper smelled marijuana (as they tend to) and found a large quantity in the bed of the truck.

Cue the suppression motion. The defense, naturally, argued the stop itself was unjustified, thus rendering all of the evidence subsequently found fruits of the poisonous tree that are inadmissible in court. Now, the most important thing for you to know about a suppression motion is that the defense bears no burden. Instead, the state bears the burden of proving that the stop and/or search did not violate the Constitution. Remember that. The state has to produce evidence, has to convince the court. So say the state wants to argue that the contraband on the defendant's person would have been found anyway because the defendant was arrested pursuant to a valid arrest warrant and upon check-in at the jail, the defendant's possessions would have been logged in. In that case, the prosecuting attorney can't just make that argument. Rather, the prosecutor has to put on evidence at a hearing of the jail's practices of inventorying an arrestee's possessions.

In the context of our case, the state bore the burden of proving that the information the trooper possessed at the time he pulled over the defendant's truck was sufficient to establish reasonable suspicion that a crime had been committed. It's so critical that the trooper himself didn't claim to have seen anything, not a single swerve, a crossing into the shoulder or over the center line, no un-signaled turns or lane changes, no speeding, nothing. The only reason the trooper pulled the truck over was that 911 call.

Now, I don't know about the rest of you, but the times when I have called 911, I have been asked for my name and given it. In other situations, I have come to realize the local police definitely identify my cell phone number with my address, and all with my name. Most of us don't get burner phones, change our numbers all the time, and have phone numbers that aren't connected to our names. Most of us are on the grid because most of us aren't Ron Swanson. Even if I were to call 911 in California, my phone number should show up on the 911 system and would ultimately be traceable back to me, even if I didn't give my name.

In this case, though, the official court position is that the 911 caller's identity is unknown. In defending the stop of the truck, the prosecution never identified the caller. The prosecution didn't call the 911 dispatcher to the stand at the suppression hearing, either, so the 911 phone call wasn't admissible in court. For purposes of this case, then, the caller is anonymous. This matters.

Historically, an anonymous tipster has been viewed in courts with less reliability than an identified accuser. This is true for a number of reasons that all stem from one basis point: an identified accuser can be checked out while an anonymous tipster has no such accountability. If the tipster identifies herself as Emily Starr of New Moon, well then the police can go to New Moon farm and talk to Emily later. They can suss out if Emily has some grudge against the defendant that might make her claims against him less credible. Now, there are valid reasons for a tipster not to identify herself, to feel safer remaining anonymous. But it does present a credibility problem for investigators, so courts have required independent corroboration before an anonymous tipster can justify a stop.

For example, the actual Supreme Court case on a corroborated anonymous tip involved a detailed phone tip wherein the caller identified the car and driver, detailed where the car would be going at a certain time, and said what drugs would be found in the car. At the appointed time, police saw the car as described, driving the described route. The caller's ability to predict future behavior was corroboration.

In this case, we neither had a name of the caller nor any corroboration or prediction of future behavior. It seems possible the prosecution might have had a name for the caller, but the prosecution didn't present that at the suppression hearing. Remember that the prosecution has the burden of proof, so it was up to the prosecution and the prosecution alone to produce the tipster's identity. They chose not to, thus we are stuck in the legal posture of treating the tipster as anonymous. Then there's the responding trooper, who followed the truck for 5 minutes without seeing any traffic violations, so we are stuck in the legal posture of that anonymous tipster's tip being the only justification for the stop.

But a majority of the Supreme Court still found a way to declare this stop was legal. They were wrong and we should all feel a little less free. All for reasons that Scalia ably set forth in his dissenting opinion. The tipster could have been someone with a grudge against the driver. The tipster could have made the entire incident up. The tipster alone shouldn't be enough for any government actor to detain free citizens. Duh. Scalia totally got it while Kennedy and Breyer, justices I'm more used to agreeing with, totally whiffed. I don't quite know what to do with that.

Fortunately for me, the world was restored to its proper order today as Scalia wrote a majority opinion that probably destroyed most criminal defendants' access to real federal court review of their convictions and sentences. Maybe I'm being too pessimistic, but it kinda feels like federal habeas corpus died today.* That's much more what I expect from Scalia.

*If you practice in the world of federal habeas and can talk me down from my Woodall ledge, please feel free.

Jerry Hatfield is still in prison. A year plus later from that previous rant. He has been there since the 1970s. As of 1980, there has been no conviction. That didn't stop the Governor from commuting his (non-existent) sentence from death to life in 1983. And it didn't stop the Department of Corrections from holding him. And holding him. And holding him.

Finally, around 2006, another inmate pointed out to Mr. Hartfield that he should have received a new trial long ago. So Mr. Hartfield, having long-since been abandoned by his defense counsel (who thought the commutation ended it, even though there was no conviction and thus no sentence to be commuted), filed a pro se motion saying, "Hey, remember me."

Eight years ago, it was brought to the attention of DOC, the prosecution, and the court that Mr. Hartfield has been held in prison since 1980 even though there was no conviction. Eight freakin' years ago! And in all that time, Mr. Hartfield has not had one moment of freedom.

Unbelievably, the most recent court ruling was in the news last week and it was essentially this: Mr. Hartfield himself is responsible for the delay in retrying him. Because he didn't assert his right.

Let's refresh the law: there are four factors for a district court to consider in deciding whether a constitutional speedy trial violation has occurred (listed in my previous post). In this case, 3 of the 4 weigh against the state. Heavily. More heavily than anything I could have possibly imagined. Weight of the world heavily. The state has no excuse for the delay of decades. There go factors 1 and 2. And factor 4 is a no-brainer, that a decades-long delay between crime and trial puts a serious crimp in a defendant's ability to defend himself. But because this one factor is a wee bit problematic, according to this judge, free pass for the state's complete and total failure to prosecute its case for decades. DECADES! (Man, this case makes me ranty.)

Never mind that apparently no one ever told this defendant that he had a right to a new trial, that even his defense attorney (incompetent fool that he is) thought the 1983 commutation of a sentence that didn't exist for a conviction that had been overturned was a good result. Never mind evidence of the defendant's diminished mental capacity. Never mind that since 1980, the state made not one single attempt to bring Mr. Hartfield to trial. Never mind that the state and the state alone bears responsibility for bringing any case to trial.

Nope. All that matters is that he didn't speak up until 2006. So the state can keep him behind bars without a conviction and can try to re-try him despite decades having now passed, meaning evidence is gone, witnesses dead, etc.

In all my years of doing this work, in all my decades of activism on the death penalty and other issues, in all my reading on wrongful convictions and criminal justice flaws, I have never seen anything more infuriating, more outrageous than this ruling. I'm so infuriated, I can't even rant about it anymore.

There is no excuse for any court anywhere getting this case in front of it and ruling in any other way than that Mr. Hartfield is to be released immediately with no further prosecution. Period. End of story. Anything else is unacceptable. Utterly and totally unacceptable on every level, in every way. And if I actually have to explain why to anyone, I will probably curl up in a ball in the corner of my closet and cry.

Wednesday, April 16, 2014

I always feel so much lighter on April 15. Not because of taxes (though I did put those off to the last possible moment this year), but because of that other dreaded project I do every year. It's done now, so forgive me as I look back through interesting news stories a week (or two).

I actually first became aware of this story at least a month or two ago. It's important enough to mention because this case challenges us to stop and think about what we hope to achieve when we prosecute offenders.What is the real goal of a prison sentence? Who benefits when particular offenders are incarcerated? For crimes that involve victims, what do we hope to provide to those victims? And isn't it entirely possible that there are some instances when a prison sentence will actually do more harm than good?

Mike Anderson committed armed robbery in 1999. He was convicted soon thereafter and sentenced to 13 years in prison. His appeals denied by 2002. He had apparently been out on bond throughout the entire process (not unheard of). When his appeal was denied, he should have either been picked up. Some things fall through the cracks, though. Mike Anderson fell through the Missouri Department of Corrections' cracks. They didn't realize they didn't already have him, so they never went looking for him.

In the meantime, Anderson just kept going on with life. Got married, had a kid, started a business, and generally lived an upstanding life. There is no indication of him having any run-ins with the police, any brushes with the law in any way. He by all accounts seems to have done exactly what society should most want from him: he has turned his life around and made a positive contribution to society.

Now, if the DOC hadn't dropped the ball, he would be nearly done with his sentence by now, most likely just released and so just starting the rebuilding process. He wouldn't have started a business, become a football coach, a father. He'd be looking at life now from a very different perspective, and one with a cynical view of our prison culture might wonder if there was really any likelihood of him becoming such a productive citizen. We haven't made it all that easy for inmates with long sentences (13 years is pretty long for these purposes) to take classes, learn skills, and generally be ready to make positive life changes upon release. So maybe the odds of him achieving the things he has if he'd served a decade-long prison term first aren't so great.

In short, not going to prison for all this time probably rehabilitated Anderson far more than any prison term could have done. And yet, the Missouri DOC finally noticed the problem and corrected it. So now, he is about 9 months into this long prison term. His family must survive without him. Who knows what will become of his business. At this stage, people will suffer actual harm from now imposing this sentence, notably his kid, his wife, his employees, the kids he coaches.

Naturally, Anderson's attorneys have filed a motion (though not being versed in Missouri law, I have no idea how likely it is to be successful, or what legal grounds they have, if any). They say even the man who was robbed doesn't see the point of the prison sentence being served at this late date. But the prosecutor seems reluctant to make an exception.

The question here really is, what are we achieving by putting Mike Anderson in prison for 13 years now? Are we just getting some kind of retribution/justice on behalf of the victim? Because the victim doesn't seem to think it's necessary. As a crime victim, this seems like what my reaction would be. If 10 years from now, I learned that the person who broke into my home had spent the last decade building a respectable, law-abiding life, I would take much more satisfaction from that than any prison term. I don't want to "get even" with my burglar in some way; I just want him/her to see the error, to recognize what a deep and personal violation it was, to not do it again.

Are we achieving anything by punishing him just to punish? I guess I don't understand the point of punishment that doesn't have a goal, whether it be to keep society safe (unnecessary based on the life he's led since 1999) or to help that individual learn better ways to live (already done) or just get him to learn that staying out of trouble is better than being in prison (again, already done).

As for the prosecution's concerns about making exceptions, well, some cases really are exceptional. That's why we have exceptions. Not every case is black and white. Some times weird, crazy, exceptional things happen and we should have the flexibility to deal with them.

Think about all the things Mike Anderson could have done with all this extra time, waiting for his bond to be revoked. (Understand, he did absolutely nothing wrong. He was on release from the court; he was under no obligation to do anything about ending that release.) He could have fled the state, making it difficult for anyone to find him when they were ready to pick him up to start his sentence. He could have committed new crimes, worked out his nerves over the unresolved situation by turning to drugs or alcohol. He could have decided not to seek gainful employment, not to engage in his community. He could have continued on the path he'd been before, making terrible choices that hurt people.

By now putting him in prison to serve 13 years this long after the fact, the state of Missouri is the one making a bad choice. Other young people who commit armed robbery aren't going to get it into their heads that they can "get away with it" if we let Anderson go. The victim isn't going to be put in any danger. There's no bad message sent if Missouri looks at the way Anderson has turned his life around and says, "the prison sentence we ordered over a decade ago isn't what we'd order for the man before us now." This is a fluke situation that should be recognized as such. No one benefits from making him serve this sentence now, but lots of people will be hurt.

Thursday, April 10, 2014

My entire life, I have always believed I am a fraud. No, I've always known it. I'm not smart. Not competent. Not likeable. Not worthy of being around. I've just been faking it (not very well, at that), all the while waiting for people to catch on. It wouldn't even take that many people, just one well-placed person who could make the house of cards that is my sham of a life come falling down.

I didn't deserve to be admitted to the college I got into. I definitely was not worthy of a decent law school. I should never have been allowed to pass the bar. What fools gave me loans with which to buy cars or a house? Why did any idiot ever trust me with a paying job? (Or a non-paying job, for that matter?) And it's never just that I should get scolded or written up in some toothless way. I always believe I should be expelled, fired, cast out of my profession, nay cast out of civilized society entirely.

I remember the day I was sure I would be fired from my summer job as a camp counselor at a YMCA day camp. Didn't sleep a wink all night, I was so worried about my horrible failure, a failure that had most likely resulted in the death of a child. Of course, I'd really just made a perfectly reasonable decision that no one thought about twice, that never even registered as an incident to anyone else. Because, duh, it wasn't. (And, no, no child was ever in any danger.)

Then there was the time my ATM card wouldn't work, first at one machine, then at the next (both from the same bank...). The error message was odd, unlike anything I'd seen before. A normal person probably would assume there was something wrong with the bank's cash machines. But not me! Nope, I was convinced my accounts had been frozen, that I was on the verge of losing everything, for some massive failure on my part I couldn't even identify. Fortunately, that insanity didn't last long as I realized there was still a branch open, so I went there where I a) got the cash I needed from my (duh) not-frozen account and b) learned that the bank was switching over to new software for their ATMs and the switch wasn't going smoothly.

It must be nice to go through life unplagued with this occasionally debilitating level of self-doubt. It'd probably be a good thing if I could figure out how to make a mistake without going straight to "I deserve to be strung up by my thumbs and upheld as an object of scorn, contempt, and derision for all eternity." Maybe someday, I'll get there. But it doesn't seem like today will be that day. Because I'm a big, big failure and a fraud and I deserve to be cast out of civilized society, probably strung up by my thumbs, and undoubtedly upheld as an object of scorn, contempt, and derision for all eternity.